Untitled Texas Attorney General Opinion

EA~ORNEY GENERAL OFTEXAS Aun~xiw n.TEXAS PRICE DANIEL ..wTORNEYGENERAL

January 25.1949

Hon. Durwood Manford, Speaker The House of Representatives 51st Legislature Austin, Texas Opinion No. V-760

Re: Eligibility of a member of the 50th Legislature to participate in the 51s~ until his successor qual- ifies.

Dear Sir:

Your letter of January 24. 1949, reads:

“Mr. W. E. Heatly was the duly elected and qualified member of the House of Representatives from the 104th District in the Fiftieth Legislature, 1947. Mr. J. R. Eanes was elected to such office for the Fifty-first Legislature. 1949. After the election Mr. Eanes became seriously ill. Because of such illness Mr. Eanes resigned before qualify- ing for the office. He did not take the oath of of- fice, Upon the receipt of the letter of resignation, the Governor called a special election which is to be held on or about February 10, 1949.

“I would appreciak your opinion as to wheth- er Mr, Heatly is eligible to serve as a Representa- tive of that district until such time as a Represent- ative is elected at the February special election;”

The answer to your question is yes. While Section 4 of Article III of the Texas Constitution states that the term of the members of the House of Representatives shall be two years, Sec- tion 17 of Article XVI further says that:

Hon. Durwood Manford - Page 2

MAI1officers within this State shall con- tinue to perform the duties of their offices un- til their successors shall be duly qualified.’

Members of the House are “officers* of this State as that term is used in the above section. Terre11 v, King, 118 Tex. 237, 14 S.W.2d 786. And you state that Mr. Eanes did not qualify as a member of the 51st Legislature.1 So the provisions of Section 17 are controlling here: that Mr. Heatly. as an officer of this State, shall continue to perform the duties of his office until his succes- sor shall be duly qualified.

The purpose of the constitutional provision is to in- sure, in so far as possible, that there be no cessation in the func- tions of government. It continues the officer in the office with all the powers incident thereto until his successor has duly qualified, Jones v. City of Jefferson. 66 Tex. 576, 1 S.W. 903; State v. Jor- don, 28 S.W. 2d 921 (Civ. App. 1930. writ dismPd); 34 Tex. Jur, 373, Officers, Sec. 31; 46 C. J. 968, Officers, Sec. 110; annotation 74 A. L. R. 486.

SUMMARY

Where a person was elected to the House of Representatives of the 51st Legislature but resigned thereafter and did not qualify for the office. the member of the 50th from that District shall continue to perform the duties of his office ‘. in the 5lst Legislature until his successor is

1 He did not take the oath required by Section 1 of Article XVI which says: *Members of the Legislature * e Dbefore they enter upon the duties of their offices, shall take the following oath D0 0R For a discussion of what constitutes a #qualification” for the of- fice of Rcprasen,+ive or Senator see C. M. Cureton”s opinion to in Reports and Opinions of the Attorney Gen- It is assumed as a fact here that Mr. Eanes did not

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selected at a special election and qualifies for the office. Sec. 17 of Art, XVI, Texas Casti- tution.

Yours very truly,

ATTOlWEYGENERALOF TEXAS

BY I/ Joe R. Greenhill E*ecutive Assistant

JRG:crc

APPROVED:

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